FREDERICK J. MCALLISTER, APPELLANTv.CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Frederick J. McAllister v. Civil Service Commission of the City of Philadelphia, No. 6114 June Term, 1975.

COUNSEL

Bruce K. Cohen, Meredith & Cohen, P.C., for appellant.

Jill A. Douthitt, with her Alan J. Davis, City Solicitor, and Judith N. Dean, Deputy City Solicitor, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino dissents. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Macphail

[ 64 Pa. Commw. Page 49]

Frederick J. McAllister appeals a Philadelphia County Common Pleas Court order affirming his dismissal by the Civil Service Commission (Commission)

[ 64 Pa. Commw. Page 50]

from the Philadelphia Police Department (Department). We reverse and remand.

McAllister was dismissed by the Department on May 28, 1967, for accepting money to investigate a complaint and to issue arrest warrants.*fn1 On appeal, the Commission ordered McAllister's reinstatement because of insufficient evidence and, subsequently, the Department petitioned for rehearing. Additional testimony was presented on August 13, 20 and October 6, 1970.*fn2 On January 8, 1971, the Commission, reversing its earlier decision, sustained the dismissal. On appeal, Common Pleas Court Judge Ned Hirsh remanded, without instruction, for further hearings.*fn3

Prior to these rehearings, the physical evidence and testimony transcripts were lost. Although full transcripts were reconstructed, the handwriting specimens were never recovered. At the Commission rehearings, over McAllister's objection, the complaining witness' testimony from the previous hearing was admitted into evidence when she could not be located to testify. Also, the graphologist's prior testimony was admitted over counsel's objection that the Commissioners could not examine the actual writing specimens.*fn4 The Commission, on June 27, 1975, reinstituted

In reviewing a Civil Service Commission decision, we must affirm unless we find that the adjudication is violative of constitutional rights, is not in accordance with the law or with the provisions of Local Agency Law, or that any necessary factual finding is not supported by substantial evidence. Fabio v. Civil Service Commission of Philadelphia, 30 Pa. Commonwealth Ct. 203, 373 A.2d 751 (1977).

McAllister claims that Judge Hirsh mandated a new hearing and that, since the Commission merely relied on the previous hearings' reconstructed transcript, he was deprived of a new hearing. On the second appeal to Common Pleas Court Judge Gelfand carefully examined the reconstructed record and concluded that it was not "so defective as to preclude an intelligent understanding of the testimony."*fn6 Having inferred that the record was "full and complete" as contemplated by the Local Agency Law,*fn7 Judge Gelfand, holding that the Commission had not committed legal error and that McAllister had not been deprived of constitutional rights, affirmed the dismissal.

When the Local Agency Law addresses the disposition of an appeal "[i]n the event a full and complete

[ 64 Pa. Commw. Page 52]

record before the local agency was made,"*fn8 by legal and logical implication, it means a full and complete record compiled before the agency in accordance with the law. Although it is difficult to speculate on the rationale prompting Judge Hirsh's remand, it is clear from the Order's wording that the hearings preceding the January 8, 1971 dismissal were in some manner legally defective and that the remand was meant to cure the unstated defect. Since it is impossible to determine precisely what procedural or substantive errors were committed by the Commission at the August 13, 20 and October 6, 1970 hearings, it is equally difficult to determine whether or not the subsequent hearings based on the reconstructed transcripts cured the errors.

We acknowledge that Judge Hirsh should have detailed the remand's rationale so that specific flaws could have been pinpointed and remedied. McAllister, however, should not suffer on this account. Further McAllister should not be deprived of a full and fair hearing because of the mysterious disappearance of the record. It is manifestly unfair in this particular case for the Commission to rely simply on the record of a prior hearing which, by strong implication, was determined to be legally deficient.

Guided as we are by the principles of fundamental fairness, we reverse and remand to Common Pleas Court for a hearing de novo.

Order

The Philadelphia County Common Pleas Court order, dated August 27, 1979, is reversed and remanded for disposition in accordance with this Opinion.

Judge Palladino dissents.

[ 64 Pa. Commw. Page 53]

This decision was reached prior to the expiration of the term of office of Judge Palladino.

Disposition

Reversed and remanded.

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